National Road Traffic Amendment Bill:adoption & National Land Transport Bill [B39-2008]: further deliberations

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13 August 2008
Chairperson: Mr JP Cronin (ANC)
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Meeting Summary

The Department of Transport legal drafters again took the Committee through the amendments to the National Road Traffic Amendment Bill resulting from discussions on the previous day. Members requested a further wording change to stipulate that the draft regulations which might be approved by the Minister should be published for public comment and should be simultaneously presented to Parliament.  Although Members were satisfied that the Department of Transport would have consulted major stakeholders there was still the need for an opportunity for public comment. Members then went through the Bill, clause by clause, and adopted it, as amended.

The Department of Transport then turned to the National Land Transport Bill, and reported that the drafters had met with their counterparts from the Department of Provincial and Local Government.  It emerged that there were several constitutional and practical issues. The plan to assign different powers in administering public transport to the different categories of municipality was of doubtful constitutionality. The Department and the Members were of the same mind regarding the institutional arrangements and devolution of functions. One possible solution to the problem might be to define municipal public transport functions narrowly, and then assign functions to municipalities that did have more capacity separately, leaving some functions to be done by provincial government. The other approach was to define everything that the Department of Transport wished municipalities to undertake. Although the Constitution did give municipalities some discretion, there were limited reasons currently for intervention, and this problem would not seem to be cured without amending the Constitution, which clearly there was no time to do. The Committee was agreed that the more feasible option would be to narrow the definition, but noted that planning should be a common function. The Committee discussed the functions that could be assigned. Members would, during the debate on the Bill, make some input into the Provinces’ role into local government and the difficulties created by the current wording around the relationship between different spheres of government. However, the Committee agreed that all municipalities should have the basic ability to plan, license and implement policy regarding local transport, although the practicalities meant that some municipalities might not take on these responsibilities. The Chairperson urged the drafters to be bolder in their approach. The Committee outlined some further worries around the Transnet issue, which involved both vested rights and the need to ensure that Transnet could not simply act without regard to municipality operations. The Bill would be further discussed on the following day.

Meeting report

National Road Traffic Amendment Bill (the Bill): Further deliberations and adoption
Mr Johannes Makgatho, Deputy Director: Legal Services, Department of Transport, distributed a four page document that captured the amendments discussed the previous day.
He went through the changes for the clauses that had been changed.

Clause 10
Mr Makgatho noted that the previous version of Clause 10 was rejected.  The new Clause now allowed applicants for learner’s and driver’s licence tests to do these tests at any testing centre. This would overcome the problems where applicants were resident in more than one province. He also distributed a copy of the National Road Traffic Amendment Act, Act 21 of 1999, which had effected certain amendments to the National Road Traffic Act of 1996 (the principal Act). He noted that none of the changes effected by the Amendment Act in 1999 were relevant to the changes discussed in connection with this Bill.

The Chairperson was happy with this.  He noted that the Department of Transport (DoT) needed to consider anti-corruption measures, but the limiting of access to testing centres was not the solution.

Ms Desiree Swartz, Senior State Law Advisor, Office of the Chief State Law Adviser, said that this provision would fall away if it was not included specifically in this Amendment.

Clause 20
Mr Makgatho said that a new sub-clause (2)(f) had been included to include a reference to emergency medical response vehicles.

The Chairperson said that this paragraph captured the areas in which regulations would apply.

Mr Makgatho said that the new paragraph (zF) flowed from this.  This addition included reference to consultation with the Minister of Health.

The Chairperson said that there was now a broader definition of an emergency response vehicle.  It could now include the private vehicle of a doctor in a rural area, for example, but only while it was being used to respond to an emergency situation.

Mr Makgatho said that the new sub-clause (e) was an amendment to Section 76 of the principal Act.  This dealt with the process of the drafting of regulations. When the Minister published notification of draft regulations, a minimum period of four weeks would be allowed for comment.  A copy of the regulations would be given to Parliament at the same time.

The Chairperson asked if the process would start again if any changes were made to the draft regulations.

Mr Makgatho said that even if there were changes to the draft regulations they would not need to be published again for comment, as the process would be complete after the prescribed consultation process.

Mr L Mashile (ANC) asked if the Parliamentary process would also be limited to four weeks.  As it stood, the amendment now set out could be interpreted as providing for two separate processes.

The Chairperson said that the object of this amendment was to create an alternative route for those having concerns to comment. He agreed that it was not clear that these should be simultaneous processes.

Mr Mashile said that the basis for the provision dealing with the regulations was to create a window for comment.  If Parliament was not bound by the set period, it might be put in a difficult position if an interest group were then to approach the Committee after the period had expired.

The Chairperson did not expect this problem to arise in practice.  If the consultation had been done correctly, there was a limited need for a Parliamentary fallback mechanism.  He presumed that all the relevant stakeholders would have been included in the process, but it might happen that somebody felt that he had not been heard.  Another problem was that the machinery of Parliament was complicated.  The Committee might only receive notice of the regulations at a later stage, and would thus have to rely on the concerned stakeholder to trigger the process.  He suggested that the phrase “at the same time” should be added to (a) so that the Minister would then have to advise Parliament at the same time that the regulations were published for comment.

Ms Swartz agreed that this should be included in subclause (a).

Long Title
Mr Makgatho said that there had been two omissions from the long title.  The first was in line 4, relating to the wording regarding the conduct of traffic officers examining allegedly overloaded vehicles.  In line 14 the reference to the Minister was omitted.  This had been discussed the previous day. The wording was now amended in line with the discussions.

The Chairperson asked Members to now turn to the clause-by-clause deliberation on the Bill. 

Mr Mashile asked if there was anything in this Bill which was a repetition or hang-over from the Amendment Act of 1999.

Ms Swartz said that all of the amendments effected by that Amendment Act must be read together with the 1996 version of the principal Act.

The Chairperson said that the reference to the principal Act in the long title should then be taken as read.  The object was to amend the principal Act, as amended.

Mr Mashile asked about the reference on page 5 to the Chief Executive Officer (CEO) of the Road Traffic Management Committee (RTMC) in the appeal process.

Mr Makgatho said that the matter had been discussed the previous day.  In fact, there was already a provision in the principal Act to cover appeals.  This was in Section 51 (b).

Mr Mashile asked if the CEO mentioned there was defined as being the CEO of the RTMC.

Mr Makgatho said that this was correct.  It was included in the definitions.

Mr Mashile asked if the CEO did in fact have the power to adjudicate in the appeal process.

Mr Makgatho said he did.  The powers of the CEO were listed in the Road Traffic Management Act.

The Chairperson concluded that the Committee agreed on the new Clause 10.

The Chairperson asked Members to consider the additions to clause 20.

Mr Makkgatho said that Clause 20 of the Bill amended the principal Act, and that it was creating a new subsection (6).

Ms Swartz corrected him and said that it was in fact Section 75 of the Act that dealt with regulations.

Mr Mashile asked about the closing remarks on consultation, financial and constitutional implications.

Ms Swartz said that the State Law Advisers had been advised by the Treasury that there were no additional financial applications.  There were no Constitutional implications either. The consultative process had been outlined in the notes on the Bill.

The Chairperson was happy that the consultative process had been followed.  There had been adequate opportunity for comment.

Mr Mashile wanted some clarity on the objects of the Bill.

Mr Nkululeko Ntwana, Parliamentary Legal Advisor, said that there was a reference in the notes on the Objects of the Bill regarding the Minister being able to set fees.

The Chairperson read out the motion of desirability.  It was moved by Mr Mashile and seconded by Mr E Lucas (IFP), with amendments. 

Members then voted to adopt the Bill.

The Chairperson noted that the Bill would be tabled in the National Assembly on Wednesday 20 August 2008.  Thirty five minutes debating time would be allocated for each of the three Bills which had now been approved by the Committee. This Bill was within the three-day rule. 

National Land Transport Bill (the Bill): Department of Transport (DoT) briefing and deliberations
The Chairperson remarked that scheduling was a problem for the people attending the meeting.

Mr Jits Patel, Acting Chief Director: Integrated Transport Planning, Department of Transport, said that the DoT had considered the changes recommended by the Committee to the National Land Transport Bill.  The Committee’s intent had been taken into account.  The Department and the Members were of the same mind regarding the institutional arrangements and devolution of functions.  The Department’s officials had met with their counterparts from the Department of Provincial and Local Government (DPLG), who also shared their views on the main concepts. However, when redrafting parts of the Bill the drafters had hit a legal minefield, and noted that there were enormous difficulties around the detail. The Bill had to be watertight and the teams from the different departments would work together.

The Chairperson suggested to the legal teams that they should get to work immediately.

Mr Derek Powell, Deputy Director General, DPLG, said that the drafters had been looking for a mechanism.  The definition of municipal public transport was a problem.  The law had to be applied to all spheres of local government, which would include Category A, B and C municipalities.  The Bill looked to create a policy that would provide asymmetrical functionality to municipalities, as some functions would only be assigned to the metros.  One way to remedy this would be to define municipal public transport functions narrowly.  Functions could then be assigned to those municipalities with more capacity separately.

Mr Neville Dingle, Consultant to the Department of Transport, said that there was a need to fit the intended outcomes into the framework.  This was proving to be problematic, but it was not an impossible task.

Mr L Mashile (ANC) did not understand the problem.  The Members had said that the municipalities should not be treated separately.  He acknowledged that some municipalities had no or limited capacity.  His understanding was that if the functions were devolved to all municipalities, other spheres of government could provide an upper structure where the capacity was lacking.

Mr Powell said that the members of the DPLG were not transport experts.  They were trying to find a way to assist the DoT.  If certain functions were to be given to certain municipalities, the Bill would have to find a legal way to achieve this. 

Mr Powell noted that there were two potential approaches. The first was to define all the things that the DoT wanted municipalities to do.  Public transport was an original function for the sphere of local government.  All municipalities had the authority to manage public transport within their boundaries, according to the Constitution. Rural municipalities could operate at a local or a district level.  There was provision for municipalities to move between Category B and C status.

Mr Powell said that the other solution would be to define the transport functions narrowly.  In terms of Section 165 of the Constitution, specific powers could be assigned to municipalities where appropriate.  Some functions could then be done by provincial government.

The Chairperson said there was a way to implement the first option, by saying that transport functions were inherent, but that some form of intervention was permitted.

Mr Powell said that the Constitution gave discretion to municipalities to perform a function or not to perform it, depending on their capacities.  The only basis for intervention was in the case of a breach of the obligations imposed on the municipality, or in the case of serious financial problems.  In his view, it would require a Constitutional amendment to get around this situation.

The Chairperson said that there was limited scope for this.

Mr Mashile referred to the Demarcation Board.  He noted that this Board sometimes did get involved with municipalities.

Mr Powell said that the Municipal Demarcation Board had been created by the Municipal Demarcation Act in terms of Section 155 of the Constitution.  It was not intended to demarcate boundaries.  It had the capacity to assess and make recommendations to government.  There were two types of functions.  Some could only be authorised by the Minister and others could be authorised by the Member of the Executive Council (MEC).  This could involve a shift between B and C status.  The Minister could not divest the rights of municipalities to fulfil their functions.

The Chairperson said that the only feasible fall-back option seemed to be to narrow the definition, for example by excluding the right to grant operating licences. However, this could be tricky, as it could involve an assigned task.  Planning should be a common function.  He asked what other functions could be common to all municipalities.

Mr Patel said that there were 28 functions that fell under the Transport Authorities (TAs).  These included planning, which in turn included financial planning, and the movement of passengers and goods; operational infrastructure and promotional publicity.

The Chairperson asked about functions that could be assigned.

Mr Powell said that there were powers vested in different spheres of government.  The functions of metros were assigned by national government in terms of Section 156(4) of the Constitution, and the Municipal Structures Act.  There were two criteria of capacity and agreements.  There were procedural steps and prudential measures to be followed.  Consolidation could be achieved.  He did not have much legal insight into this matter.  In the transport sector the TAs would continue with previous practices.  The legislation would have assigned to the provinces.  One sphere could revoke the powers of another.  Provinces had inherent transport functions.  One could say that powers should remain with the Minister unless they were assigned.

Mr Mashile said the main aim was to devolve authority to local government.  This would have an empowering effect.  He would like to hear how municipalities could be assisted without considering the different categories.  In some case cases local government might not have the capacity.  Separating the powers would perpetuate the difference between categories.  The Bill could perhaps provide for temporary intervention where there was an obligation for a higher sphere of government to assist.  He thought the drafters were moving in that direction.

The Chairperson said that it would not be possible to amend the Constitution by the following week.  The Committee therefore needed to find a solution without going the route of Constitutional amendments.  Provinces did have a role to play in local government.  They should write a report to make an input to that discussion. Another mechanism could perhaps be found.  There were problems in the Constitution regarding the relationship between different spheres of government.  These undermined the coherent ability to implement legislation.  This point would be made by Members during the debate on the Bill. It was not of help to the current situation if discriminatory measures were written into legislation.  Municipalities could not be turned into second class citizens. He noted that there were some serious impediments.

He said that there would be another problem if powers were placed into the Minister’s hands.  If the MECs had to decide, then there might be other problems.  If problems arose at a national level there might be problems at the National Council of Provinces.  It was a political problem, and this debate was not helping the drafters much.

Mr Powell said that if the decision of the process was that municipal public transport functions should go to that sphere this would result in fewer problems.  In some areas there had been an extremely effective capacity building programme over the last twenty years, so that it was possible to implement the functions. The political direction was that public transport should be a municipal function.  This first objective could be reached easily.

The Chairperson said that the Committee wanted to move very quickly on this, and that it did not want to “fence off” the metros from other municipalities.  All municipalities should have the basic ability to plan, license and implement policy regarding local transport.

Mr Mashile said that capacity within municipalities was one factor.  Intervention by provincial government was another.  Functions could be devolved, with provision for intervention by provincial government where needed, until an acceptable capacity level had been reached.

The Chairperson said that this sounded easy in theory but it was not the case in real life.

Mr Patel agreed.  Planning and service delivery were among the four functions that could be handled at municipal level.  There was a practical aspect of how to get to the point of phasing these provisions into the municipalities.  Some municipalities might never take on these responsibilities.

Mr Powell said that functions could not be taken away from a municipality.  Support would have to be given.

The Chairperson said this was a major issue.  If the public transport function was broadly defined, then at some stage functions like operator licensing and subsidisation might have to be taken away.

Mr Patel said these could be considered as assigned functions.  They were not inherent provincial functions and could be taken to the national sphere.  Subsidisation was a national function and could be assigned.  It still fell under the DoT’s national budget.  When the drafters had started to work that morning they had realised what impediments lay in their path.

The Chairperson said that if they found themselves vacillating between caution and boldness they should be a bit more bold.  If the route was to put operating licences as an assigned function then this should be done.  If the drafters were to tiptoe around the issue they would get nowhere.  They could use 2010 as a driver in the political process.

Mr Mashile said the Committee must move forward.  It was clear that everyone was thinking in one direction, and should not be prohibitionist or negative.

The Chairperson said there were still some worries around the Transnet issue.  Freight logistics should fall within municipal planning.  Major projects like pipelines and port design were not municipal functions.  Commuter passenger services were part of municipal planning.  Municipalities might wish to regulate the flow of commuters, but they could not tell Transnet how they should operate.  The Committee was sympathetic to this.  There were other complicated issues in terms of vested rights.

Mr Patel said that the Bill would enshrine these rights.

Mr Mashile said that local government should have some way to influence Transnet operations within their areas.  Transnet could not be allowed to do just as it pleased.

Mr Patel said that things were getting clearer on the Committee’s side.  There were Constitutional issues involved.

The Chairperson said that it would be difficult to finish deliberations on the Bill in one day, because of the serious consequential issues which had arisen.  The three-day rule for the presentation of legislation in the National Assembly meant that at the latest the Bill had to be finalised by Monday afternoon for debate on the Thursday.  He asked that the Committee meet again at 09h00 on the following day, when it would have to take the hard decisions. 

The meeting was adjourned.


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